DETAILED ACTION
Continued Examination
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 07/10/2026 has been entered.
Previous Rejections
Applicant’s arguments, filed July 10, 2026, have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5-7, 9-16, and 18-19 are rejected under 35 U.S.C. 103 as being as being obvious over Swistowski et al. (US 2007/0014744 A1) in view of Hori et al. (US 2019/0053999 A1).
Examiner’s Note: Behenyl behenate (the elected fatty acid ester) is known in the art to be a wax (See: Swistowski at [0018]). The Examiner is interpreting the limitation “said composition containing less than 5.0% by weight of wax(es)” to be waxes other than the linear fatty acid monoester of formula (I). The Examiner is interpreting “fatty acid” to be a stand-alone fatty acid (i.e., not part of another compound such as a fatty acid ester; pg. 7-8 of the remarks filed 07/10/2026).
Regarding claim 1, Swistowski discloses cosmetic preparations which contain a wax component, a fatty acid, a polyvalent alcohol (i.e., polyol), and a gel component [abstract] [0045]-[0051]. The compositions are aqueous [0045]-[0051]. Swistowski discloses the compositions may include behenyl behenate as the wax component [0018] and stearic acid or palmitic acid as the fatty acid (claim 13). Swistowski discloses the compositions further include a base capable of neutralizing the fatty acid (claims 10-15) [0024]. Behenyl behenate is disclosed as a wax which is present in a total content ranging from 0.5 to 50% by weight relative to the total weight of the composition [0022]. Swistowski discloses the gel component includes thickening agents such as carrageenans, celluloses and cellulose derivatives, such hydroxyethyl cellulose [0032] [0045]-[0051].
Swistowski discloses a constitute of the preparation is a wax component [0014], wherein the wax component may be behenyl behenate, which is included in an amount of between 0.5 and 50% by weight [0018] [0022]. Therefore, only one wax is required (e.g., behenyl behenate) in an amount of between 0.5 and 50% by weight and Swistowski does not require the use of additional waxes (i.e., the amount of other wax components is less than 5.0% by weight because additional waxes are not required).
Swistowski does not disclose the compositions include pullulan.
Hori discloses cosmetic compositions [abstract] where carrageenan, hydroxyethyl cellulose, and pullulan are disclosed as water-soluble polymer thickeners [0098]-[0100]. Hori teaches that these water-soluble polymers act to thicken the composition and enhance the stability of the cosmetic [0098]-[0100].
Since Swistowski generally teaches a cosmetic composition, it would have been prima facie obvious to one of ordinary skill in the art to include pullulan, within the teachings of Swistowski, because Hori teaches pullulan as a water-soluble polymer thickener for a cosmetic formulation. An ordinarily skilled artisan would have been motivated to use pullulan to thicken the composition and enhance the stability of the cosmetic [0098]-[0100].
Furthermore, it is prima facie obvious to select a known material for incorporation into a composition, based on its recognized suitability for its intended use. See MPEP 2144.07. In the instant case, since Swistowski generally taught water-soluble polymer thickeners (e,g, carrageenan and hydroxyethyl cellulose [0032] [0045]-[0051]), it is prima facie obvious to select pullulan for incorporation into the cometic composition based on its recognized suitability for the intended use as a water-soluble polymer thickener, as taught by Hori.
Additionally, it is prima facie obvious to combine prior art elements according to known methods, to yield predictable results. In the instant case, all the claimed elements (e.g., behenyl behenate, stearic/palmitic acid, a base, a polyol, water, and pullulan) were known in the prior art (e.g., Swistowski and Hori) and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielding nothing more than predictable results (e.g., a cosmetic composition) to one of ordinary skill in the art. MPEP 2143.A.
In regards to the amounts of the components, in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. See MPEP 2144.05 A.
Claim 2 is rendered prima facie obvious because Swistowski discloses a constitute of the preparation is a wax component [0014], wherein the wax component may be behenyl behenate, which is included in an amount of between 0.5 and 50% by weight [0018] [0022]. Therefore, only one wax is required (e.g., behenyl behenate) in an amount of between 0.5 and 50% by weight and Swistowski does not require the use of additional waxes (i.e., the amount of other wax components is less than 3.0% by weight because additional waxes are not required).
Claim 3 is rendered prima facie obvious because Swistowski discloses behenyl behenate [0018].
Claims 5 and 6 are rendered prima facie obvious because Swistowski discloses stearic acid and palmitic acid (Claim 13).
Claim 7 is rendered prima facie obvious because Swistowski discloses stearic acid in an amount of 4.0 wt.% [0045]. A prima facie case of obviousness exists because of overlap, as previously discussed.
Claim 9 is rendered prima facie obvious because Swistowski discloses the base is an organic base (claim 11).
Claim 10 is rendered prima facie obvious because Swistowski discloses the base, triethanolamine, is present in the compositions in an amount of 0.75 wt.% [0049] and 0.65 wt.% [0051]. A prima facie case of obviousness exists because of overlap, as previously discussed.
Regarding claim 11, Swistowski discloses the gel component includes thickening agents such as carrageenans, celluloses and cellulose derivatives [0032]. Examples include hydroxyethyl cellulose in an amount of 1.3 wt.% [0045] [0051] and carrageenan in an amount of 1.50 wt.% [0047].
Swistowski does not disclose pullulan in an amount of 1 to 7% by weight relative to the total weight of the composition.
Hori discloses cosmetic compositions [abstract] where carrageenan, hydroxyethyl cellulose, and pullulan are disclosed as water-soluble polymer thickeners [0098]-[0100].
It is prima facie obvious to substitute equivalents known for the same purpose. See MPEP 2144.06. In the instant case, since Swistowski taught the water-soluble polymer thickeners hydroxyethyl cellulose in an amount of 1.3 wt.% [0045] [0051] and carrageenan in an amount of 1.50 wt.% [0047], it is prima facie obvious to substitute pullulan based on its recognized suitability for the intended use as a water-soluble polymer to thicken cometic compositions, as taught by Hori. Regarding the amount of the thickening agent, a prima facie case of obviousness exists because of overlap, as previously discussed.
In the alternative, Hori discloses that the thickeners, such as pullulan, are present in the composition in an amount of 0.1 to 5 wt.% [0098]-[0100] [0104]. Hori teaches that the water-soluble polymers act to thicken the composition and enhance the stability of the cosmetic [0098]-[0100] and when the amount of thickener is less than 0.1 wt.% the stabilizing effect due to the addition may not be achieved and when the compounded amount is greater than 5 wt.% stickiness or heavy feel during the application may be caused [0104].
Since Swistowski generally teaches a cosmetic composition, it would have been prima facie obvious to one of ordinary skill in the art to include pullulan in an amount of 0.1 to 5 wt.%, within the teachings of Swistowski, because Hori teaches pullulan as a thickener for a cosmetic formulation in this amount. An ordinarily skilled artisan would have been motivated to use pullulan in this amount to thicken the composition and enhance the stability of the cosmetic [0098]-[0100] and would have been motivated to use this amount because Hori teaches that when the amount is less than 0.1 wt.% the stabilizing effect due to the addition may not be achieved and when the compounded amount is greater than 5 wt.% stickiness or heavy feel during the application may be caused [0104]. A prima facie case of obviousness exists because of overlap, as previously discussed.
Claim 12 is rendered prima facie obvious because Swistowski discloses glycerin (i.e., glycerol) as a polyol to be used in the composition [0026].
Claim 13 is rendered prima facie obvious because Swistowski discloses the polyol is used in an amount of 0.3 to 10% by weight [0026]. A prima facie case of obviousness exists because of overlap, as previously discussed.
Claim 14 is rendered prima facie obvious because Swistowski discloses the compositions include water in an amount of 50.75-57.55 wt.% [0045]-[0051]. A prima facie case of obviousness exists because of overlap, as previously discussed.
Claims 15 and 16 are rendered prima facie obvious because Swistowski discloses the compositions include metal oxides as pigments [0045]-[0051] (Claim 47).
Claim 18 is rendered prima facie obvious because Swistowski discloses the compositions may further include fatty alcohols [0021] and it is prima facie obvious to combine prior art elements according to known methods, to yield predictable results, as discussed above.
Claim 19 is rendered prima facie obvious because Swistowski discloses the composition is for eyelashes [0001] [0010] (“mascaras” [0045]-[0051]).
Response to Arguments
Applicant's arguments filed 07/10/2026 have been fully considered and will addressed insofar as they apply to the new ground(s) of rejection.
Applicant argues at pg. 6 that nothing in Swistowski would lead one of ordinarily skill in the art to substitute esters of formula (I) for traditional waxes as set forth in the pending claims (e.g., more esters of formula I than traditional waxes). Applicant argues that Swistowski does not teach, suggest, or recognize that such maximizing/minimizing actions are result-effective variables affecting the resulting properties and consistent reproducibility of the composition.
The Examiner disagrees. Swistowski reads on the instant claim 1 because Swistowski discloses a constitute of the preparation is a wax component [0014], wherein the wax component may be behenyl behenate, which is included in an amount of between 0.5 and 50% by weight [0018] [0022]. Therefore, only one wax is required (e.g., behenyl behenate) in an amount of between 0.5 and 50% by weight and Swistowski does not require the use of additional waxes (i.e., the amount of other wax components is less than 5.0% by weight because additional waxes are not required). While Swistowski does not teach “such maximizing/minimizing actions are result-effective variables affecting the resulting properties and consistent reproducibility of the composition”, this is 1.) not a required feature of the claim(s) and 2.) the applicant has not provided experimental data showing the alleged beneficial properties of more esters of formula (I) (at least 5%) than “traditional waxes” present (< 5%).
Claim 8 is rejected under 35 U.S.C. 103 as being as being obvious over Swistowski et al. (US 2007/0014744 A1) in view of Hori et al. (US 2019/0053999 A1) and further in view of Siddiqui (US 2018/0104161 A1).
The 35 U.S.C. 103 rejection over Swistowski in view of Hori was previously discussed.
Swistowski does not disclose the base is an inorganic base, as recited in claim 8.
Siddiqui discloses a cosmetic composition with the inorganic base, sodium hydroxide as a pH Buffer [0136] [abstract]. Siddiqui teaches that a pH buffer, such as sodium hydroxide, brings the pH of the product to the desired pH level and also maintains a product’s pH [0136].
Since Swistowski generally teaches a cosmetic composition, it would have been prima facie obvious to one of ordinary skill in the art to include sodium hydroxide, within the teachings of Swistowski, because Siddiqui teaches sodium hydroxide in a cosmetic composition. An ordinarily skilled artisan would have been motivated to use sodium hydroxide because Siddiqui teaches that a pH buffer, such as sodium hydroxide, brings the pH of the product to the desired pH level and also maintains a product’s pH [0136].
Response to Arguments
The rejection over Swistowski in view of Hori and Siddiqui is newly applied and has not been traversed.
Claim 17 is rejected under 35 U.S.C. 103 as being as being obvious over Swistowski et al. (US 2007/0014744 A1) in view of Hori et al. (US 2019/0053999 A1) and further in view of Pavel (US 2008/0175808 A1).
The 35 U.S.C. 103 rejection over Swistowski in view of Hori was previously discussed.
Swistowski does not disclose the composition includes at least one semicrystalline polymer, as recited in claim 17.
Pavel discloses a composition for eyelashes, such as mascaras, with a semi-crystalline polymer [abstract] [0021]-[0027]. Pavel teaches that the semi-crystalline polymer supports, strengthens, stiffens and reinforces faux fibers formed upon application of a composition to a keratin material [0027].
Since Swistowski generally teaches a cosmetic composition for eyelashes, it would have been prima facie obvious to one of ordinary skill in the art to include a semi-crystalline polymer within the teachings of Swistowski, because Pavel teaches a semi-crystalline polymer in a cosmetic composition for eyelashes. An ordinarily skilled artisan would have been motivated to use a semi-crystalline polymer because Pavel teaches that the semi-crystalline polymer supports, strengthens, stiffens and reinforces faux fibers formed upon application of the composition to a keratin material [0027].
Response to Arguments
The rejection over Swistowski in view of Hori and Pavel is newly applied and has not been traversed.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3 and 5-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-25 of U.S. Patent No. 11,419,807 in view of Swistowski et al. (US 2007/0014744 A1), Hori et al. (US 2019/0053999 A1), and Siddiqui (US 2018/0104161 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other. The claims recite all of the features instantly recited for the composition except for pullulan in the claimed amount, a polyol (such as glycerol) in the claimed amount, an inorganic base, and a metal oxide as a colorant.
Swistowski discloses cosmetic preparations for the eyelashes [abstract] [0045]-[0051]. Swistowski discloses glycerin (i.e., glycerol) as a polyol to be used in the composition and it is disclosed that the polyol is used in an amount of 0.3 to 10% by weight [0026]. Swistowski teaches the polyvalent alcohols serve in cosmetic preparations as moisture donors [0026]. Swistowski discloses the compositions include metal oxides as pigments [0045]-[0051] (Claim 47).
Hori discloses cosmetic compositions [abstract] where pullulan is disclosed as a water-soluble polymer thickener [0098]-[0100]. Hori discloses that the thickeners, such as pullulan, are present in the composition in an amount of 0.1 to 5 wt.% [0098]-[0100] [0104]. Hori teaches that the water-soluble polymer acts to thicken the composition and enhances the stability of the cosmetic [0098]-[0100] [0104].
Siddiqui discloses a cosmetic composition with the inorganic base, sodium hydroxide as a pH Buffer [0136] [abstract]. Siddiqui teaches that a pH buffer, such as sodium hydroxide, brings the pH of the product to the desired pH level and also maintains a product’s pH [0136].
It would have been prima facie obvious to one of ordinary skill in the art to include pullulan in the claimed amount, a polyol (such as glycerol) in the claimed amount, an inorganic base, and a metal oxide as a colorant within the claims. The ordinarily skilled artisan would have been motivated to include a polyol, such as glycerol, in an amount of 0.3 to 10% by weight because Swistowski discloses glycerin (i.e., glycerol) as a polyol to be used in the cosmetic composition in an amount of 0.3 to 10% by weight [0026] and Swistowski teaches the polyvalent alcohols, such as glycerin, serve in cosmetic preparations as moisture donors [0026]. The ordinarily skilled artisan would have been motivated to include a metal oxide to serve as a pigment in the composition as taught by Swistowski [0045]-[0051] (Claim 47).The ordinarily skilled artisan would have been motivated to include pullulan in an amount of 0.1 to 5 wt.% because Hori teaches that the water-soluble polymer, such as pullulan, acts to thicken the composition and enhances the stability of the cosmetic [0098]-[0100]. The ordinarily skilled artisan would have been motivated to include an inorganic base to bring the pH of the product to the desired pH level and also maintain the product’s pH as taught by Siddiqui [0136].
In regard to the amounts of the components, a prima facie case of obviousness exists because of overlap.
Claims 1-3 and 5-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-27 of U.S. Patent Application No. 18,713,830 in view of Swistowski et al. (US 2007/0014744 A1) and Hori et al. (US 2019/0053999 A1).
Claims 1-3 and 5-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-33 of U.S. Patent Application No. 19/484,542 in view of Swistowski et al. (US 2007/0014744 A1) and Hori et al. (US 2019/0053999 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other. The copending claims recite all of the features instantly recited for the composition except for pullulan in the claimed amount, a claimed polyol (such as glycerol) in the claimed amount, and a metal oxide as a colorant.
Swistowski discloses cosmetic preparations for the eyelashes [abstract] [0045]-[0051]. Swistowski discloses glycerin (i.e., glycerol) as a polyol to be used in the composition and it is disclosed that the polyol is used in an amount of 0.3 to 10% by weight [0026]. Swistowski teaches the polyvalent alcohols serve in cosmetic preparations as moisture donors [0026]. Swistowski discloses the compositions include metal oxides as pigments [0045]-[0051] (Claim 47).
Hori discloses cosmetic compositions [abstract] where pullulan is disclosed as a water-soluble polymer thickener [0098]-[0100]. Hori discloses that the thickeners, such as pullulan, are present in the composition in an amount of 0.1 to 5 wt.% [0098]-[0100] [0104]. Hori teaches that the water-soluble polymer acts to thicken the composition and enhances the stability of the cosmetic [0098]-[0100] [0104].
It would have been prima facie obvious to one of ordinary skill in the art to include pullulan in the claimed amount, a claimed polyol (such as glycerol) in the claimed amount, and an inorganic base within the copending claims. The ordinarily skilled artisan would have been motivated to include a polyol, such as glycerol, in an amount of 0.3 to 10% by weight because Swistowski discloses glycerin (i.e., glycerol) as a polyol to be used in the cosmetic composition in an amount of 0.3 to 10% by weight [0026] and Swistowski teaches the polyvalent alcohols, such as glycerin, serve in cosmetic preparations as moisture donors [0026]. The ordinarily skilled artisan would have been motivated to include a metal oxide to serve as a pigment in the composition as taught by Swistowski [0045]-[0051] (Claim 47).The ordinarily skilled artisan would have been motivated to include pullulan in an amount of 0.1 to 5 wt.% because Hori teaches that the water-soluble polymer, such as pullulan, acts to thicken the composition and enhances the stability of the cosmetic [0098]-[0100].
In regard to the amounts of the components, a prima facie case of obviousness exists because of overlap.
These are provisional nonstatutory double patenting rejections.
Claims 1-3 and 5-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent Application No. 18/713,833 in view of Swistowski et al. (US 2007/0014744 A1), Hori et al. (US 2019/0053999 A1), and Pavel (US 2008/0175808 A1).
Although the claims at issue are not identical, they are not patentably distinct from each other. The claims recite all of the features instantly recited for the composition except for pullulan in the claimed amount, a polyol (such as glycerol) in the claimed amount, a metal oxide as a colorant, and a semi-crystalline polymer.
Swistowski discloses cosmetic preparations for the eyelashes [abstract] [0045]-[0051]. Swistowski discloses glycerin (i.e., glycerol) as a polyol to be used in the composition and it is disclosed that the polyol is used in an amount of 0.3 to 10% by weight [0026]. Swistowski teaches the polyvalent alcohols serve in cosmetic preparations as moisture donors [0026]. Swistowski discloses the compositions include metal oxides as pigments [0045]-[0051] (Claim 47).
Hori discloses cosmetic compositions [abstract] where pullulan is disclosed as a water-soluble polymer thickener [0098]-[0100]. Hori discloses that the thickeners, such as pullulan, are present in the composition in an amount of 0.1 to 5 wt.% [0098]-[0100] [0104]. Hori teaches that the water-soluble polymer acts to thicken the composition and enhances the stability of the cosmetic [0098]-[0100] [0104].
Pavel discloses a composition for eyelashes, such as mascaras, with a semi-crystalline polymer [abstract] [0021]-[0027]. Pavel teaches that the semi-crystalline polymer supports, strengthens, stiffens and reinforces faux fibers formed upon application of a composition to a keratin material [0027].
It would have been prima facie obvious to one of ordinary skill in the art to include pullulan in the claimed amount, a polyol (such as glycerol) in the claimed amount, a metal oxide, and a semi-crystalline polymer within the copending claims. The ordinarily skilled artisan would have been motivated to include a polyol, such as glycerol, in an amount of 0.3 to 10% by weight because Swistowski discloses glycerin (i.e., glycerol) as a polyol to be used in the cosmetic composition in an amount of 0.3 to 10% by weight [0026] and Swistowski teaches the polyvalent alcohols, such as glycerin, serve in cosmetic preparations as moisture donors [0026]. The ordinarily skilled artisan would have been motivated to include a metal oxide to serve as a pigment in the composition as taught by Swistowski [0045]-[0051] (Claim 47).The ordinarily skilled artisan would have been motivated to include pullulan in an amount of 0.1 to 5 wt.% because Hori teaches that the water-soluble polymer, such as pullulan, acts to thicken the composition and enhances the stability of the cosmetic [0098]-[0100] [0104]. The ordinarily skilled artisan would have been motivated to include a semi-crystalline polymer because Pavel teaches that the semi-crystalline polymer supports, strengthens, stiffens and reinforces faux fibers formed upon application of a composition to a keratin material [0027].
In regard to the amounts of the components, a prima facie case of obviousness exists because of overlap.
This is a provisional nonstatutory double patenting rejection.
Response to Arguments
Applicant's arguments filed 07/10/2026 have been fully considered but they are not persuasive.
Applicant argues that the references would not motivate one skilled in the art to modify the subject matter of the asserted claims in a manner which would yield the currently claimed compositions.
The Examiner disagrees. One of ordinarily skill in the art would have been motivated to modify the claims (‘807 in view of Swistowski, Hori, and Siddiqui; ‘830 and ‘542 in view of Swistowski and Hori; ‘833 in view of Swistowski, Hori, and Pavel) to arrive at the claimed composition as discussed above.
Conclusion
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/ASHLEE E WERTZ/Examiner, Art Unit 1612
